An hour or so ago I heard a story on NPR about California’s new “Dead Celebrities” law. In a nutshell, it allows the heirs of a celebrity to control the use of that celebrity’s image after said celebrity’s death… even if at the time of the celebrity’s death, the right to bequeath this power didn’t exist.

I always find these sorts of stories depressing, because there is an important perspective that is lost. In the story, we hear that one side of the legal thinks it boils down to one simple question:

“How can a celebrity’s legacy be protected, and who can do that?”

But he’s wrong. There is another simple question we could be asking here:

Are we such a celebrity-obsessed culture that we will give celebrities the power to limit our freedom of expression even from beyond the grave?

To often, in stories about expansion of what is called “intellectual property rights” (i.e. exclusive copyrights, patents, and trademarks), we hear about how it’s “property,” and how violation of these things is theft. Very, very, rarely do we hear the fact that these things are also limitations on freedom of expression.. Indeed, the conflict this NPR story focuses on is entitled “Whose Property?”, and the other side of the lawsuit is a guy who wants to continue to profit by selling licensing rights to his father’s photographs:

“It’s against the Constitution to take away someone’s property,” Greene said. “Somebody can’t come in and take away your property. You own it. Your father, let’s say, composed a piece of music. Now, all of a sudden, someone else is going to come in and say, ‘We’re going to take over your rights.’ I beg your pardon?”

Here, the side against this expression-squelching law has completely accepted the notion that “intellectual property” is just like other forms of property.

I’m not saying that we shouldn’t have copyrights or trademarks at all. I am saying, however, that the very terms of the debate stilt the debate towards copyright maximalism, and ever expanding copyright restrictions and terms… and that we have lost sight of the fact that copyright is a sacrifice of our freedom of expression, and its benefits need to be evaluated against that sacrifice.

Let us suppose this California law becomes the standard, a federal law or widely adopted amongst all the states. Now suppose that 50 years from now somebody writes an article entitled “Where It All Went Wrong” about early 21st century American presidential politics, and wanted to include the following image (which I grabbed from the US Dept. of State website):

To do so, the article’s author would have to get permission from four estates: the estate of G. W. Bush, the estate of D. Cheney, the estate of C. Rice, and the estate of the photographer.

Does this sound to you like the legal landscape of a society that values freedom of expression?

If a “celebrity” spends a lifetime building, nurturing, and pruning a career and brand out of their name/reputation/talent/works, why shouldn’t they be able to bequeath that like any other asset? Or in the case of grandfathering, the heirs inheriting the control/rights like any other undocumented assets.

“Why should any person x get to profit off of said photo if the principals’ heirs in the photo can’t?”

This sort of begs the question. The central question is whether intellectual property is rightfully treated like tangible property, you seem to be simply assuming that it is.

My own position is that intellectual property should be treated like a monopoly privilege contingent upon the benefit of such a monopoly to a society. The benefit is of course that it helps internalize what is essentially a public good (i.e., the transmission of ideas, which has no efficiently divisible benefit sans state intervention). In such a picture the legal detriment of intellectual property in limiting freedom of expression has to be considered.

Because the laws necessary to allow bequeathing that of an asset like any other must also restrict the freedom of expression of everybody else. Does that sounds like a reasonable sacrifice to you?

Any trademark or copyright at all requires some sacrifice of freedom of expression. And, we as a society agree to some of that, because copyright allows artists to survive and we value artists. But when you start talking about it as an asset and as something monetized and as something that can be passed on like property, you completely lose sight of the fact that you are limiting freedom of expression in this asset bequeathing.

Why should any person x get to profit off of said photo if the principals’ heirs in the photo can’t?

And who said they couldn’t? I’m just arguing that they shouldn’t have the power to stop anybody else from using the photograph. Giving away the power willy nilly to invoke censorship laws is scary. It should only be done with great consideration.

It seems clear to me if you read the Constitution that the intent of “intellectual property rights” (copyright and patent) is to encourage the development of the arts and technology for the benefit of the public, not as a means of securing income for those who develop them. Protecting those developments and the related profits for a limited time is a way to encourage that development. Losing that protection at the end of a limited time is a way to encourage the developers to do something new. Current copyright law is a perversion of the intent of the Constitution. So the California law appears as well.

I’m with Mark. Our society has come to have a religious like attitude towards property, particular money making property. Celebrityhood is very similar to owning a brand-name. I believe even today Elvis’s brand is earning his estate something like $30M/year. So this subject is all about big sums of money. Not only that, but big sums of rich peoples money. If it was poor peoples money, I doubt any great efforts to protect it would be made.